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Click here for the full text of this decision FACTS:On Jan. 14, 1995, the IRS seized property belong to Nancy and William Johnston in Galveston for failure to pay taxes. The IRS gave notice on March 21 that a sealed-bid sale would take place on April 11 in Houston. The IRS postponed the sale, serving notice on Nov. 22 that the property would be sold on Dec. 12. Mary and John Bennett bought the property, and after the 180-day redemption period, they received a quitclaim deed to the property and duly recorded it on June 12, 1996. The Bennetts conveyed the property to Connie and Carlton Phillips in June 1997, and the Phillipses conveyed it to Heather and David Shain in April 2001. In March 2001, the Johnstons filed an action to quiet title on the property, claiming the IRS’ initial sale was void because of procedural irregularities. The United States was added as a party, the case was removed to federal court, summary judgment was entered for the United States (because it had no interest in the property, the United States was immune from suit), and the remaining claims were remanded to state court. The trial court denied the Johnstons’ motion for summary judgment, which was based on the procedural irregularities argument. The trial court also granted summary judgment for the Bennetts, Phillipses and Shains, who defended by saying the Johnstons’ claim was barred by both the three- and five-year statute of limitations. The trial court did not specify its grounds for either ruling. HOLDING:Affirmed. The court agrees with the Johnstons that the IRS did not follow the rules laid out in 26 U.S.C. �6335(d)-(e). The IRS did not sell the property in the county where it was located it. The sale occurred well beyond the 40-day limit between notice and sale. Plus, the property was not released to the Johnstons following the postponement of the first sale. However, contrary to the Johnstons’ assertion that the sale is void, the court finds that the procedural irregularities merely made the sale voidable at the option of the Johnstons. The Johnstons did not prove as a matter of law that the quitclaim deed issued by the IRS was void, so the trial court did not err in denying their motion for summary judgment. The court then considers whether the others families proved adverse possession as a matter of law. Civ. Prac. & Rem. Code �16.024 says that a suit to recover property held by another in peaceable and adverse possession under title or color of title must be brought “not later than three years after the day the cause of action accrues.” The other families thus had to prove that they had actual and visible appropriation of the property that was uninterrupted, and that they held possession under title or color of title. The Johnstons claim that because the IRS sale was void, there was not sufficient proof that any of the families adversely possessed the property. However, because of the court’s holding that the sale was merely voidable, and not void, the IRS did have the power to convey legal title to the Bennetts, “subject to the Johnstons’ right to have the deed set aside within the applicable statute of limitations by proof that the sale of the property was improperly made.” The subsequent transferors had the same rights, culminating in the Shains’ ownership. The court adds that the Johnstons did not offer any proof to challenge the Phillipses openly and peacefully possessed and used the property for more than three years. Having established color of title and adverse possession, the court agrees that summary judgment for the families based on the three-year adverse possession statute was correct. OPINION:Tim Taft, J.; Taft, Hanks and Higley, JJ.

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